Why the Marriage (Same Sex) Act 2013 does not bring Marriage Equality: The Case of Trans* People

Kat Gupta is a researcher at the University of Nottingham and recently completed a PhD in corpus linguistics, focusing on the representation of the women’s suffrage movement in The Times newspaper between 1908 and 1914. Kat also campaigns on trans* and queer issues.

The Marriage (Same Sex Couples) Act 2013 received its Royal Assent this month to the joy of many cis-gender lesbian, gay and bisexual people in same sex relationships and the dismay of many transgender people. While same sex marriage is an important step for many people, allowing them to celebrate their relationship, in its current form it fails transgender people. Trans* activists have already written about what the Act means for trans* people: Zoe O’Connell has summarised where the Marriage (Same-Sex Couples) Act 2013 leaves trans* people, while Sarah Brown has further discussed its implications for trans* people.

In this post, I will discuss three of its main failings: stolen marriages, the spousal veto, and the Act’s language of binary gender. As the Act is written in terms of binary gender – something that I find deeply problematic and will discuss further in the third section of this post – I will use its language of “opposite sex” and “same sex” relationships. An opposite sex relationship is defined as one between a man and a woman; a same sex relationship as between two men or two women. These definitions can be found in Schedule 3, Part 2 of the Act.

Stolen marriages

Under the terms of the Gender Recognition Act 2004, someone with a Gender Recognition Certificate (GRC) is legally recognised for all purposed as their chosen gender and is able to obtain a new birth certificate showing their chosen name and gender identity. This is obviously important to many people. However, before the Marriage (Same Sex Couples) Act, if you were married or in a civil partnership and wanted to legally change your gender, you were required to annul that marriage/civil partnership in order to apply for a GRC.

As well as the heartbreak of having to divorce someone you loved, it also meant that, even if you promptly remarried your partner as soon as you were awarded your GRC, your previous legally recognised relationship with them was not recognised.

One of the good things the Marriage (Same Sex Couples) Act does is ensure that a married couple can stay married if one of the partners transitions. If the couple are in a civil partnership, they would have to convert the civil partnership into a marriage in order to remain in a legally recognised partnership. This approach has its own set of problems, as I will discuss in the next section.

People who previously chose not to obtain a GRC because it meant dissolving their marriage will be able to fast-track their application for a certificate.

However, under the terms of this Act, previous partnerships with the same person are not recognised. This is despite campaigning from trans* people who divorced and remarried the same person. So, for example, Sam was married to Bob for 13 years. In 2005, they divorced so Sam could obtain his Gender Recognition Certificate. They entered into a civil partnership in 2006 and will convert their civil partnership into a marriage. The decision not to restore stolen marriages means that despite Sam and Bob being in a legally recognised relationship for 19 years, only the last six years count.

As well as having implications for pensions and survivor’s benefits, the decision not to restore such marriages is deeply upsetting for people who were coerced into divorces they never wanted and want to see their “stolen marriages” given back to them.

Spousal veto

As discussed in the previous section, the Act will allow married transgender people to get a full Gender Recognition Certificate and remain married. Yet under Schedule 5, paragraphs 2-4a, the applicant’s spouse must make a statutory declaration of consent to the marriage continuing. If the applicant’s spouse does not consent, the applicant is issued with an interim Gender Recognition Certificate and has six months for their spouse to offer a statutory declaration of consent. If the spouse continues to withhold consent, the applicant’s only option is to start proceedings for divorce.

“basically, if your spouse can’t, or won’t sign the consent form, you have to divorce them to get your rights. This creates what is possibly the most passive-aggressive legally sanctioned way to initiate a divorce ever, i.e. ‘I don’t want to divorce you, but I’m going to veto your human rights until you divorce me'”.

Divorces can be acrimonious as it is; a spouse can stall, refuse to co-operate, and fight you through the courts. Under the terms of the Marriage (Same Sex Couples) Act, their lack of co-operation is not simply frustrating and upsetting, but denies you your human rights. ”

Janet Barlow and Rebecca Mason, writing in the New Law Journal, observe that “no other area in law requires spousal consent to any change within a marriage; no consent is required to move abroad, financially destabilise the family, or apply for medical treatment”. Other huge, life-changing decisions do not require consent from your spouse – not vasectomies, not plastic surgery, not taking out thousands of pounds in loans, not buying a helicopter or an Irish Wolfhound puppy. Yet changing your legal gender – not your name, not your body, not the way you move through the world and are intelligible in it – does.

Binary gender

A third objection to this law is that binary gender – a system where only two genders are recognised – is encoded into the Act. As it stands, the types of legal recognition available are different for relationships comprising of opposite-sex and same-sex people. Same-sex couples may enter a marriage or a civil partnership; opposite-sex couples may only enter into a marriage.

However, “sex” here is defined as someone’s legal sex – what is on their birth certificate and legal documentation. In many cases, this will be the sex they were assigned at birth. If an individual obtains a Gender Recognition Certificate, their legal sex becomes that of the opposite legal sex. Legal sex is a binary system: you can only be female or male. For most people this is not a problem. However, the Scottish Trans Alliance’s 2012 survey into trans mental health identified that over a quarter of survey participants identified as non-binary or agendered, meaning that their gender doesn’t fit within the male/female binary or that they don’t feel that they have a gender at all. Many non-binary and agendered people change their name and ask people to use gender-neutral pronouns for them. Some seek to change their bodies through medical interventions such as hormones and surgery. However, because there is no legal recognition for non-binary genders, this group of people are unable to change their legal documentation to reflect their gender and must remain as legally male or female.

For this group of people, the (Same-Sex Couples) Marriage Act 2013, with its reinforcement of the gender binary, means that they are forced to lie about their gender in order to gain legal recognition of their relationship. As Sarah Brown remarks:

If you’re neither a man nor a woman, or your marriage can’t be described as either “opposite sex” or “same sex”, then you’re not included in any of this. Where the consultation simply avoided this “opposite sex/same sex/man/woman” distinction entirely with “marriage regardless of gender”, what we now have in the bill is “marriage for the genders of male and female”

It did not have to be this way. A non-gendered Act with marriage and civil partnerships open to any couple regardless of their gender identities would not only have given opposite-sex couples more options but also would have provided for non-binary and agendered people

I am very happy for my cisgendered gay, lesbian and bisexual friends. Within minutes of the Act passing, I heard of long-awaited, long-considered proposals. But as it is, the Marriage (Same Sex Couples) Act 2013 does not repair some of the past hurts dealt to trans* people and their partners – and it introduces some extra.

14 Responses

Nevertheless, it delights me. It is the major victory for Equality this year, possibly of the decade. I would prefer the abolition of gender in law, but that may come, later, and if it does this Act will have paved the way for it.

And- I would have preferred the abolition of grounds for dissolving a voidable marriage- non-consummation, etc, which only applies to opposite sex marriage, and divorce for Adultery, which only applies to conduct with the “opposite” sex. But- it is a huge step forward, and these things are comparatively minor, I think- even though I am trans, and have no wish to marry now.

I just utterly don’t understand why any of this was necessary. When Canada passed same sex marriage, essentially the entire act went, “a) Marriage is the union of two people to the exclusion of all others. b) For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex. c) Churches don’t have to marry anyone they don’t want to.” followed by a bunch of necessary amendments to other laws. There was simply no need to impose binary gender on anyone, let one spouse veto another, or anything of the kind. I mean hell, in Quebec you used to not be able to legally change your gender if you were married and as soon as SSM came in that just sort of… faded away. It was all simple and to the point and I don’t understand why England and Wales had to futz around so much.

Exactly this. You shouldn’t attack this law for working within the system already laid out before the writers of it. If you want non-binary genders recognized, Fight for THAT. Don’t bemoan the fact that it not being recognized already lead to an unrelated law also not recognizing it.

Canada was able to declare marriage as being a “union of two people” mainly because they don’t have an established Church. The CofE is the problem here – because they don’t support same-sex marriage (yet…?) the 2013 Act had to pussyfoot around the issue and codify different forms of marriage (and protections for the opposed) into law. If the CofE were to be disestablished, then the law could no doubt be tidied up – hopefully by allowing only one form of legally binding marriage – civil marriage, with the option of a religious service as wholly separate ceremony.